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Editorial Board/Comments Missouri Law Review Volume 21 Issue 2 April 1956 Article 3 1956 Editorial Board/Comments Follow this and additional works at: https://scholarship.law.missouri.edu/mlr Part of the Law Commons Recommended Citation Editorial Board/Comments, 21 MO. L. REV. (1956) Available at: https://scholarship.law.missouri.edu/mlr/vol21/iss2/3 This Comment is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. et al.: Editorial Board/Comments MISSOURI LAW REVIEW Published in January, April, June, and November by the School of Law, University of Missouri, Columbia, Missouri. Volume XXI April, 1956 Number 2 If a subscriber wishes his subscription to the Review discontinued at its expration, notice to that effect should be sent; otherwise it is assumed that a continuation is desired. Subscription Price $2.50 per volume $1.00 per current number EDITORIAL BOARD Hmnm H. LsAE, Faculty Chairman STUDENTS RlxmoND M. Asam FBEMmmuc H. MAUGHMEr, Jn. THEODoR C. BEaKEIT WALTER F. Mousy ICHARD W. DAHMS ALLEN S. PARISH ELVIN S. DouGIAs, JR. EuGE E. RVES CHARLS P. DBEN RAYmoND R. ROBERTS LEo E. ECKHOFF, JR., Chairman GILBERT A. RuNGE LEoN D. EsTEP IsAAc N. SKELTON JERRY S. ESTES RALPH H. SMiTH C. ROBERT HINES Joiuq F. STAPLETON DwiGcr L. LAmSON ELxn R. SfTmEBERG ROBERT E. LusK EsTHER MASON, Business Manager Publication of signed contributions does not signify adoption of the views expressed by the REVIEW or its Editors collectively. "My keenest interest is excited, not by what are called great questions and great cases, but by little decisions which the common run of selectors would pass by because they did not deal with the Constitution or a telephone company, yet which have in them the germ of some wider theory, and therefore of some profound interstitial change in the very tissue of the law."-OuvE WENDELL Homs, COLLEcTED LEGAL PAtEns (1920) 269. Comments DowER, HO STEAD ESTATE, HOmEsTEAD ALLOWANcE, AND RELEASE OF MARITAL RIGHTs UNDER THE N~w MIssounI PRoBATE CODE I. INTRODUCTION The Missouri Probate Code of 1955, effective January 1, 1956, abolishes common law dower, statutory dower,' and the homestead estate, and replaces them 1. "The estates of curtesy and dower are hereby abolished, but any such estate now vested is not affected by this Code." Mo. RLv. STAT. § 474.110 (Supp. 1955) (Laws 1955, p. -, H.B. No. 30, § 246). (151) Published by University of Missouri School of Law Scholarship Repository, 1956 1 Missouri Law Review, Vol. 21, Iss. 2 [1956], Art. 3 MISSOURI LAW REVIEW [Vol. 21 with what the Code calls a homestead allowance.2 At common law the widow was endowed of the third part of freehold estates of inheritance of which her husband was seised during coverture, to hold during her lifetime. During the lifetime of the husband, the wife's interest was known as inchoate dower, which was not an estate. After the husband's death her interest was known as dower consummate, and after dower was assigned by the heir, the widow had an ordinary life estate.2 Missouri's statute on dower prior to the Missouri Probate Code of 1955 was Missouri Revised Statutes, Section 496.010 (1949), which was basically a codifi- cation of common law dower. This statute was repealed by the new Code when it took effect January 1, 1956.' Dower has existed since the beginning of the English law of land. The purpose of dower is to protect the widow and her children. Until modern times most estates consisted principally of land, and it was to this that dower attached. Under present conditions many estates consist principally of personal property. The need for providing for sustenance and support of the wife and her children after the death of the husband and father now calls for extending the scope of dower or a substitute therefor to personalty as well as to realty in order ade- quately to meet this need. The Missouri Probate Code of 1955 states that no act done in any proceeding commenced before the code takes effect and no "accrued" right shall be impaired by its provisions.' In abolishing dower and curtesy, the code states that any such estate now "vested" is not affected.e A problem to be considered is what is an "accrued" right or a "vested" estate, each of which expressly is not affected by the new code. "Accrued" is defined in a leading law dictionary as being "acquired; fell due; made or executed; matured; 2. "At any time after the return of the inventory, the court, on application of the surviving spouse or of the guardian or person having custody of the person of the unmarried minor children of a decedent, shall make an allowance to the surviving spouse or unmarried minor children of an amount not exceeding fifty per cent of the value of the estate, exclusive of exempt property, and the allowance made under section 474.260, but in no case shall the allowance exceed seven thousand five hundred dollars. Such allowance shall be known as a homestead allowance. .. ." Mo. Rnv. STAT. § 474.290 (Supp. 1955) (Laws, 1955, p. H.B. No. 30, § 138.) 3. Eckhardt and Peterson, Possessory Estates, Future Interests and Con- veyances in Missouri, 23 V.A.M.S., p. 25, § 27. 4. "To repeal chapters ... 469, RSMo 1949, . .. " (Laws. 1955, p. H.B. 30.) 5. "No act done in any proceeding commenced before this Code takes effect and no accrued right shall be impaired by its provisions." Special note following § 472.010 (Supp. 1955). This is § 1, Paragraph 2, Mo. PROBATE CODE; of 1955, enacted by Laws 1955, p. -, H.B. 30. 6. Mo. Rnv. STAT. § 474.110 (Supp. 1955), supra note 1. https://scholarship.law.missouri.edu/mlr/vol21/iss2/3 2 et al.: Editorial Board/Comments 1956] COMMENTS occurred; received; vested." "Accrued" is defined in Corpus Juris Secundum as "acquired; arose; became due; became vested; came into existence; existed; fell due; has arisen; made or executed; matured; occurred; received; vested; was created; was incurred; was in existence. ."' The Missouri Supreme Court has defined "vested" as meaning "fixed, accrued, or absolute."' From the definitions of "accrued" and "vested" it appears that both words mean the same thing, i.e. "fixed or absolute," to adopt a common definition in the words of the Missouri Supreme Court. It would seem that the draftsmen of the Missouri Probate Code of 1955 had in mind only the normal situation, where the husband owns Blackacre on January 1, 1956 and the interest of the wife is changed from inchoate dower to the home- stead allowance given by the code. In other words, inchoate dower is abolished and the homestead allowance is substituted or given in the place of inchoate dower. There seems to have been no consideration of the several situations involving dower which are discussed hereinafter. In considering the various situations which may arise where the issue is whether dower is effectively extinguished, two problems must be kept in view: first, is the particular dower interest an accrued or vested right expressly saved by the Code; and second, if the particular dower interest is not so saved, is it a "property" right the purported extinguishment of which violates due process of law? In either case the dower interest will continue unimpaired. II. HUSBAND OWNS LAND WHEN CoDE TAKES EFP'ET In the normal case, the husband owns land when the Code takes effect January 1, 1956. Until the effective date of the code, the interest of the wife was that of inchoate dower. The code purports to abolish inchoate dower and substitute for it the homestead allowance. The question of whether inchoate dower is a property right and whether it may be divested by legislative action is more fully covered in Section III of this comment dealing with the situation where before the effective date of the code the husband conveyed land without joinder by the wife, and the husband dies after January 1, 1956. Even if it be assumed that inchoate dower is a property right, it would seem that its extinguishment does not violate the due process clauses, the Fourteenth Amendment to the Constitution of the United States, and Article I, Section 10, Missouri Constitution of 1945. Although inchoate dower is extin- guished, the homestead allowance has been substituted in its place. A similar enactment occurred in Missouri in 1921, when curtesy consummate 7. BLACKS LAW DICTIONARY 37 (4th ed. 1951). 8. 1 C.J.S. 761 (1936). 9. Orthwein v. Germania Life Insurance Co. of City of New York, 261 Mo. 650, 170 S.W. 885 (1914). Published by University of Missouri School of Law Scholarship Repository, 1956 3 Missouri Law Review, Vol. 21, Iss. 2 [1956], Art. 3 MISSOUBI LAW REVIEW (Vol. 21 not yet vested was abolished, and dower was substituted for it." This statute was held constitutional in Duncan v. Duncan." In 1917 a special statute of limitation applicable to instruments executed prior to January 1, 1900 and a reenactment in 1951 applicable to instruments executed prior to January 1, 1935, in which a spouse did not join, bars dower unless suit or sworn notice was filed within two years after the effective date of the act. 2 Although the constitutionality of these acts has not been attacked, the grace period for saving the interest would seem to satisfy due process, and title examiners do not question their constitutionality."3 Although dower and curtesy were extinguished in the cases covered by these acts, it was accomplished by due process of law.
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